Access to Iustice Metrics Informed bythe Voices ofMarginalized Community Members:

Themes, Definitions and RecommendationsArising from Community Consultations‘

I. INTRODUCTION

The Canadian Bar Associati0n’s Access to justice Committee's Building Block #1 Access tojustice Metrics seeks to develop a practical definition ofaccess to justice. Further, ourgoal is to identify tangible indicators and goals to measure progress.

The Committee resolved to develop this definition fi'om the perspective ofmarginalizedcommunity members affected by a lack ofaccess to justice. Put plainly, we wanted toknow what really happens when access to justice is denied.

We worked with two sub-committees (one made up ofcommunity members with livedexperience in marginalization, including an Elder; and the second made up of front-linecommunity workers) to develop a community consultation framework designed to beethical, respectful, reciprocal, inclusive and culturally relevant. Then, in partnership withcommunity based organizations and legal aid offices, we conducted thirteen communityconsultations across Canada: in Calgary, Saskatoon, Toronto, Montréal and theMaritimes. The consultations were conducted exclusively with marginalized communitymembers: low-income adults and youth; racialized groups; Single mothers; and peoplewith disabilities.

This paper seeks to identify the themes that emerged from the consultations andsummarize the community feedback around those themes, illustrated by direct quotesfrom participants. Its findings are supported in part by previous public and stakeholderconsultations conducted in British Columbia, Manitoba and Ontario regarding access tojustice, which are periodically referenced throughout the paper.

Hearing marginalized community members’ voices, practical components ofaccess tojustice emerge. At the conclusion of each section, practical definitions of “access tojustice” reflective of the community’s voices are olfered.

1 Paper prepared by Amanda Dodge (March 2013) for the Envisioning Equal Justice initiative for the StandingCommittee on Access to Justice.

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> “[Hurnan rights] are being eroded because no good access to justice.” -Person with disability, Toronto

> “Unless you have lots ofmoney, you cannot access justice." - Single mother,Moncton

> “I could care a less; it's broken and you just deal with it.” -Aboriginal woman,Saskatoon

II. ‘WHAT HAPPENS WHEN ACCESS TO ]USTICE IS DENIED

1. Legal Rights are ]ust on Paper

The vast majority ofcommunity members acknowledged that the law affords rights andprotections, but felt that they were not honoured or accessible. When asked about legalrights, most participants stated plainly that they did not feel they had any legal rights.

> "To me, legal rights are an unfulfilled promise." - Person with Disability,Toronto.

It seemed that the greater one’s marginalization, the more distant the enforcement oftheir legal rights. The primary barrier to feeling as though one could access legal rightswas, not surprisingly, a lack of financial resources.

> "I do not feel like I have legal rights. You can get them ifyou can afford them."- Single mother, Moncton

> “The good old dollar defines what our legal rights are." — Person withDisability, Toronto

Many other barriers were identified that stood in the way ofaccessing one’s legal rightsand protections. Common barriers mentioned were: literacy and language barriers;disabilities, both physical and mental; racial discrimination; and level ofeducation.

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‘P “But for a deaf person with limited literacy or from another country, don'tthink they have the same access, and for me maybe less than a hearingperson." - Deafperson, Durham

Lack of information seemed to be the greatest hurdle to enforcing one’s legal rights. Notonly a barrier, lack of information aggravated the emotional impact ofgoing throughjustice processes. This is explored further later in the paper.

> “Ifyou don't knowwhat your rights are, how can you have them protected?"Single mother, Kentville

‘P “I never lG'l€W what was going to happen next.” - Domestic violence survivor,Calgary

The community did identify that impediments sometimes depended on the individual.Community members pointed to personality characteristics, like tenacity, or attitudes,such as optimism, as determinative ofwhether someone would pursue legal rights andprotections.

When community members were asked whether the law would protect them from abusesof power, or hold a person in authority accountable for breaking the rules, the mostcommon response was to laugh out loud. The subsequent comments were, unanimously,in the negative. They pointed to significant barriers in doing so: they did not know howto make a complaint, they did not know where to go; there was not enough informationabout how to do it; they did not think they would be believed or taken seriously; theywere intimidated and made to feel stupid; and they were afraid to challenge the morepowerful party.

> "[There's] no accountability for anyone, lawyers or judges; you are always left toflounder.” — Single mother, Moncton

> “It always feels like, oh, that's the law and there's nothing you can do about it. “-Aboriginal woman, Saskatoon

> “l wasn't resisting arrest and they were still forceful. They handcuffed me whenI was six months pregnant. There's no justice. I felt like I couldn't do anything.They are on a power trip, most of them.” -Aboriginalwoman, Saskatoon

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Reprisal was a running theme for why community members did not seek redress when aperson in authority broke the rules. Many community members articulated a fear ofreprisal if they were to complain or challenge someone in a position ofpower.

> “When I complain, they retaliate." - Person with disability, Toronto

> “Those responsible for doing unpleasant things to us are not heldaccountable. For every 1,000 blows, only one is compensated. - Personwith disability, Toronto

Hon:does this inform apracticaldefinition ofaccess to justice?Iustice then transcends barriers. It is freely and equally available regardless ofsocio-economic status, ability, education or race. It applies equally to everyone,regardless of their status. Information about rights and how they can be enforcedis readily available. Complaint and appeal avenues are accessible and safe.

2. Iustice Systems Cannot Be Trusted

A very strong message heard throughout the consultations is that, inherently, the systemis untrustworthy, corrupt and broken. Several people reported feeling betrayed andabused by the system.

‘P “The system is there to defeat you.” - Single mother, Montréal

> “I think it is like a cesspool, foul.” — Deafman, Toronto

> “lfyou believe in the system and think it will help you, you'll get burned.” -Aboriginal woman, Saskatoon

> “Often things go off the rails I don't have confidence in system." - Deafwoman, Waterloo

> “I'm a victim of the system, as well as a victim ofmy abuser." - Single mother,Kentville

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> “l feel intimidated and bullied by the legal system.” — Domestic violencesurvivor, Calgary

> “justice is to protect us, not to abuse us. It has been used to overpower ormanipulate us.” -Aboriginal woman, Saskatoon

The brokenness of the system was evident in the frustrations expressed by communitymembers. Both parties to disputes and adjudications reported that the systems failedthem: both offenders and victims, both applicants and respondents. Neither side felt thesystem was fair or worked for them.

> “I was sexually assaulted. At Court I had to narrate the whole story while thatguy was just sitting there and didn't have to do anything. The guy only got sixmonths. No one helped me. I trusted in the system but nothing came out ofit." - Aboriginal woman, Saskatoon

When it came to addressing their legal problems, community members often did not feelthat the systems helped them. There was a sense that they had to find justice on theirown.

> “I had my court order in my vehicle so I called the police. The police oflicertold me that they didn't have time to deal with stuff like that. They weren'tinterested in the court order; they had other things to do. I had to hide aroundthe block and wait for the opposing party to come home.” - Single mother,Moncton

> “It's on our shoulders to continuously do something about it (opposing partynot respecting court orders). There is no enforcement mechanism. " - Singlemother, Moncton

Excessive and harmful delay was an oft-cited frustration, and can be considered in twoaspects. First, the system itself creates delay. Community members described having toattend Court for repeated adjournments, to wait many months to be heard in Court, tomiss work for repeated Court appearances, and to wait for Legal Aid's help. Delay is afrustrating barrier to enforcement of legal rights and attaining some measure ofjustice.*

’ Problematic delay in the criminal justice system also observed by “Town Hall Meeting on Access to justiceReport and Summary”, Manitoba Bar Association (zou) at p. 7.

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Secondly, delay is created by the community members’ lack of information. lnsufiicientguidance wastes their time. Often the delay is harmful creating negative consequences inother areas of the community members’ lives.’

P "They keep adjourning because the lawyers don't have their shit together!Every time it's an adjournment and my son just sits in jail. He's treated likehe's already guilty.” —Aboriginal woman, Saskatoon

> "When you leave an abusive family situation, you are dealing with the traumaof howyou are changing your own life as well as disrupting the lives ofyourchildren. Then, you have to deal with the whole new trauma offinding out youhave to wait so long to get into court. Then, you finally go to court and you aredisappointed with the result.” - Single mother, Moncton

> “Due to wait times, I am in a position now where I might lose my house. If thishappens, I will never be able to get a mortgage again, all because of theopposing party being in contempt — no consequences for him". - Singlemother, Moncton

Community members noted the hypocrisy ofan ineffective system that held expectationsof them. The lawyers and Courts were constantly adjourning, but expected them to be atCourt. The lawyers and Courts did not have the proper papers filed, but expected them toprovide required information in a timely way. The hypocrisy of this added to theirfrustration and distrust in the justice system.

> “They don't cooperate with us at all, but they expect us to cooperate with them.I'm done cooperating with them.” — Single mother, Montréal

Many community members reported feeling pre-judged by the justice system: the judge,their lawyer, the social worker. They felt pre-judged based on their past, race, ability andage. There were frequent references to feeling guilty until proven innocent.

§> “You don't have any legal rights; you're guilty until proven innocent as far asI'm concerned." — Street-involved male youth, Halifax

3 See also: “Getting It Right: The Report of the Ontario Bar Association justice Stakeholder Summit”,Ontario Bar Association (2.007) at p. 7.

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> “The first thing the social worker said to me, as she looked rne up and down,was ‘Well well, (rot) years old, (x) children, (y) different fathers... We lovecomplicated files like this! Then, you got back together with the physicallyabusive father? Sounds like you're not very stable.’ She had already judged me!I thought to myself listen, you don't know me. You don't know. - Singlemother, Montreal

Some community members defined justice as the right to be heard. Many reported thatthey were not afforded an opportunity to be heard or to tell their stories. Even when theydid get to tell their story, they were not believed or taken seriously.

> “They didn't listen to my story." - Domestic violence survivor, Calgary

> “I fled my home with nothing. Then the police did not even believe mystory.” — Domestic violence survivor, Calgary

> “It felt like the judge wasn't even listening to me. He ordered me to payeven though I was the lower income earner." - Domestic violencesurvivor, Calgary.

One thing that came through very clearly was the concern that the justice system doesnot recognize or understand the social and personal realities of the marginalized peopleprogressing through it.

This results in two streams ofproblems. One, the system and its actions actuallyperpetuates or aggravates the problem that got them involved in the system to beginwith.

> “When I'm released from jail, that's when I want to use, because I've beenmistreated, locked down, abused, scared, and traumatized, so I want tohurt myselfwhich could lead to my breaking law again and there goes thecycle. Why is there no debrief when you get out’? So much money put insystem, it's ass-backwards.” — Woman with mental disability, Toronto

> “I have an addiction, I'm fighting it, but they use that as a tool to try tokeep me there. They wouldn't let me go to my family overnight atChristmas because they thought drugs might be there. But they'll let me

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go to group and I could get drugs on way to group if I wanted. They don'ttake time to find out root of problem, [it's] based on what they think andresearch.” - Man with mental disability, Toronto

> “I knew the system but the system didn't work for me. jail was completelythe wrong place for me to be.” — Woman with mental disability,Toronto

The second problem created by the system's seeming ignorance of social and personalrealities is that it has a “spiraling and multiplying” effect‘ into other areas of their lives,worsening them significantly.

Lastly, community members often felt that the remedies they obtained from the justicesystem were not meaningful or trustworthy ways to attain redress for the wrong.

For example, a group ofparticipants in Saskatoon identified racial discrimination as theirgreatest barrier to justice. This group was educated about the processes of theSaskatchewan l-Iuman Rights Commission, yet they did not believe that filing a humanrights complaint with the Commission would result in a meaningful response for thediscrimination they faced.

Another example where remedies were deemed meaningless was with respect toenforcement; women in particular reported enduring the delay, frustration and trauma offamily courts only to obtain an order that could not be enforced.

> “Once you finally get there and you get an order, there is nobody there toenforce it. This is what I needed. Now that l have an Order, it's not beingrespected and there is no one to do anything." — Single mother, Moncton

> “The facts are before the judge still nothing is done. Why did l waste mytime coming to court? It makes me feel like I should have just stayed in thebad situation." - Single mother, Moncton

L.T. Doust, “Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia”(March zou) at p. 21.4

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How does thisjnform apractical definition ofaccess to justice?just justice systems earn the trust of the marginalized communities who accessthem. just processes are effective, efficient and timely. just systems havereasonable and fair expectations. justice ensures that parties are heard. justiceprocesses and outcomes are reflective of the social and personal realities of theparties. just outcomes are meaningful: they effectively redress the wrong orprotect fromwrong.

3. justice is Person-Dependent

This was an interesting finding. When community members discussed their satisfactionor dissatisfaction with the justice system, it was often reflective of the particular justiceprofessional they were dealing with. Whether the service or experience was effective, fairor compassionate depended on the individual, be it the judge, lawyer or police officer. Afrequently repeated phrase was, “it's the luck of the draw".

> “Having right person is key.” - Person with disability, Toronto

> “[I]t depends on the person have they had experience, sensitivitytraining, do they or don't they know what [they] need to do[?] Sometimes[I] go to family law clinic and [it] depends on whether the nice lawyershows up...” - Deafwoman, Durham

There were some commendations but mainly several complaints about the quality andcompassion of the justice professionals community members encountered.

> “They're supposed to be there to help you, but that's not what happens. Ifyou're asking for help, it's because there's something wrong with you.” - Singlemother, Montréal

a. judgesThere were positive comments about judges being open-minded and good listeners, andmaking fair decisions. However, more often there were concerns and criticismsexpressed. With judges, it seems “it's the luck of the draw”.

> “Some judges are terrific, some have no patience, some want to listen ...,others just want to get through [it]." - Deafwoman, Waterloo

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> “One judge is kind hearted and nice, and then another one is miserable.” -Aboriginal woman, Saskatoon

> “It's not fair for the judge to be biased and abuse their power. The judge picksthe person he likes and shoves the other person in jail." -Aboriginalperson,Saskatoon

> “judges believe that they know everything about access and they reallydon't. There needs to be some awareness training for them.” - Deafman,Toronto

judges are not fully trusted and sometimes viewed as biased. Many community membersfelt pre-judged when they walked into the Courtroom. Some identified factors seeminglyunrelated to their case that affected its outcome, such as how well the judge knows thelawyer before them.

> “How come some judges are more lenient than another if the law is thelaw is the law?" - Woman with mental disability, Toronto

b. LawyersThe consensus was that having a lawyer was your best bet to have help and guidancethrough the process. Without a lawyer one is left to flounder.5

However, whether one’s lawyer was helpful or effective, whether Legal Aid or private,depends again on the “the luck of the draw”. It seemed that the “good ones" are theminority of lawyers; we heard frequent comments that ifyou get a good lawyer, you're"lucky".

> “My lawyer does pro bono, she's just awesome.” - Woman with mentaldisability, Toronto

> "She is empathetic, cares; there is a caliber about her.” — Man withmental disability, Toronto

5 Supported by the B.C. report, ibid, at p. 23.

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> “With lawyers you get the good with the bad, some who care, some whodon't." - Deafman, Toronto

> “You have to trust in the lawyer, that they know what's right and wrong. It'shard to put your faith in them." -Aboriginalwoman, Saskatoon

Many community members discussed their dissatisfaction with Legal Aid lawyers; theyexpressed very negative views. They complained about poor service, delay, not caring,just wanting to “do deals”, not wanting to hear them out, and not wanting to fight forthem. Community members often believed the cause of the poor service was that LegalAid lawyers were overworked and underpaid. Also, they perceived Legal Aid lawyers asless friendly with judges than private lawyers and thus less likely to get their way inCourt.

> “Legal Aid does not really help you. They are working with the cops. Theydon't really help you. They are just there to make a deal. " — Aboriginalperson, Saskatoon

> “Their case load is so big that they cannot go through every detail of the case.It’s hard when you are trying to prove your innocence and they are not willingto fight for you.” —Aboriginalperson, Saskatoon

> “lt’s because lawyers don't have time or understanding. Lawyers needpatience.” — Deafwoman, Waterloo

> “Legal Aid put a program in place for lousy lawyers with lousy pay low-income clients deserve first class lawyers. [I'm] not talking about lawyersindividually, [but] talking about [the] system, [it's] set up for failure." -Deafman, Toronto

> “Legal Aid lawyers burn out, so justice isn’t served. They need to open it upmore; the lawyers lose passion when they are overworked and underpaid,which is unfair to lower class society." -Aboriginalperson, Saskatoon

> “They try to convince you that they are working for you, but they try tomake a deal. They say if you plead guilty you get this or that, you still get

a record; they don't try to fight for you.” — Man with mental disability,Toronto

> “To a Legal Aid lawyer, I am just a file or case number. In my case, I had to doall my own research on CanLII; I might as well have represented myself.” -Domestic violence survivor, Calgary

> “Legal Aid [are] out and out liars.” — Man with mental disability,Toronto

> “They don't care about you.” - Street-involvedmale youth, Halifax

Regarding Legal Aid's scope ofservice, community members complained about the limitsin service provision, including low financial eligibility guidelinesll, and said that theirservices were reactive, not proactive.

> “[I was ineligible] simply because [I am] a hard-working, frugal and responsiblecitizen" — B.C. resident’

> “My ex had to take me to Court before I could get Legal Aid to represent me.They wouldn't have represented me if I had taken him to Court. " - Singlemother, Kentville

Community members drew a clear distinction between Legal Aid and private lawyers.They generally had a higher opinion ofprivate lawyers. There were repeated commentsthat when a lawyer was paid more money they were more likely to fight for and do abetter job for them. Private lawyers were perceived as being more effective and actingmore quickly. Many people credited private lawyers for “getting [them] off". Privatelawyers were perceived as friendlier with judges than Legal Aid lawyers and thus morelikely to get their way in Court.

> “That's what happens when you pay for a lawyer, they work for theirmoney.” - Man with mental disability, Toronto

5 There is plentiful discussion in the B.C., Ontario and Manitoba reports, supra notes 1, 2. and 3, regardingcomplaints that legal aid provision was too limited in scope, mainly regarding financial eligibility.

7 Supra note 3.

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> “If you don't have enough money you can't win the case. You do not havejustice." - Person with disability, Toronto

There was some discussion about how more “good” lawyers, those working for socialjustice, were needed. Community members believed that financial reward elsewhere inthe rofession was the main reason there were fewer social ’ustice oriented la ers.P WY

c. PoliceMarginalized community members voiced many complaints and concerns about thepolice. They were the most often discussed justice professional, particularly aroundabuses ofpower. Police were consistently vilified for improper, unethical and corruptimplementation of the law. They are perceived as abusive, untrustworthy, intimidating,discriminatory, disrespectful, insensitive and ineffective. Community members in need ofpolice services complained that they are often delayed or not provided at all; they gaveexamples where the police refused to intervene and help.

> “The cops think they can do and say whatever they want; they think they'reabove everyone else because they have authority.” - Street-involvedfemaleyouth, Halifax

> “The majority of the cops abuse power. Everyone’s too scared to challengethem. The judge is going to trust the police. I've seen cops dealing drugs.” -Aboriginalperson, Saskatoon

> “I will never ever trust the police. I was drunk and passed out and all ofasudden I woke up and found myselfout of town. My legs were sore. The policehad dragged me out there and done this to me.” -Aboriginalperson,Saskatoon

> “They (the police) said they would take me to a dark parking lot and beat meup. They took me downtown. I tried to talk to them and they said, oh no, theywouldn't do something like that." -Aboriginalfemale youth, Saskatoon

> “I was walking out ofa motel with my five year daughter. I was approached bypolice and he asked me, in front ofmy daughter, if I was selling drugs. Thatwas just because I'm Aboriginal, I wasn't dressed fancy. Why else ask me? Sowrong.” -Aboriginal woman, Saskatoon

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> “The police were against an emergency protection order. What is the purposeof one, then? I didn't feel protected but betrayed by police." - Domesticviolence survivor, Calgary

Although police were the most condemned in this kind ofconduct, community membersadvised they were least likely to seek redress for it due to significant fears of reprisal.They provided several examples ofpolice engaging in reprisal when they stood up topolice or made a complaint about them. Reprisals included assault, harassment,institutional transfers, withholding medication, and needless searches.

> “If I report the cop, next time he sees me he's going to be pissed." - Street-involved male youth, Halifax

> “You refuse them, they beat you up." - Street-involved male youth,Halifax

> “[E]very scar on my face is from a police officer.” - Person with mentaldisabilities, Toronto

- > “Sad part is that lots of us are afraid to complain because you are labeledand they make your life a nightmare, so these guys feel they can alwaysget away with it.” - Person with mental disabilities, Toronto

Even with police, feedback still supported that the quality of their services was persondependent. Community members gave some reports ofgood experiences with police.

> “There are some pretty good cops out there. This RCMP cop on reserve tookmy nephew home once after he'd passed out. But those good cops are veryfew.” -Aboriginal woman, Saskatoon

P “Getting police to help is quite hit or miss." — Person with Disability, Toronto

How does this inform apractical definition ofaccess to justice?Iust systems ensure consistency the quality of its justice professionals. They areconsistently effective, fair, respectful and sensitive. 'l'hey are not corrupt and donot engage in reprisal. The quality of their service does not depend on howmuchmoney theymake. They take the time to listen, to inform, and to do a good job.

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4. justice Systems are Difficult to Navigate

Community members were consistent is their complaint that justice systems wereconfusing and difficult to navigate. Ignorance of one’s legal rights renders them useless.Information is not readily available. People are not sure where to go for help. It is hardfor them to know which forms are the right ones. People are not directed to the rightplace and often do not have someone to guide them. People reportedly felt like they were“running in circles". The systems are not integrated; they are in “silos".“

> "l think [the form] is intentionally long to dissuade people from filingcomplaints.” — Person with disability, Toronto

)> “My boyfriend is working for a company. When he's not going into work hecalls. He went to work on Tuesday and they fired him after missing work onMonday. He tried to call the company but the phone wasn't connected. He'sworried the company folded and isn’t sure what to do. Can he go to LabourStandards? Who knows where to go?” -Aboriginal woman, Saskatoon

> “What ifa judge screws you over? How do you deal with that? And whathappens to them? Do they get “time offwith pay"?” -Aboriginalwoman,Saskatoon

> “I’d like to sue the cops. Can you do that?" -Aboriginal woman, Saskatoon

Many community members reported that lack of information and direction exacted anemotional toll. Community members described how scary and intimidating it is not toknow what is happening, what their options are, what possible outcomes might be, andso on. They mentioned the anxiety, fear, frustration, discouragement and stress involvedin progressing through justice systems. They also talked about their need for emotionalsupport.

> "I feel alone and I don't know who I am supposed to contact.” - Single mother,Moncton

“ Supported by the Ontario report, supra note z, at p. 6.

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> “I had a lawyer; she was helpful but she didn't educate me about what Iwas going to get myself into she didn't explain it." - Person withmental disabilities, Toronto

)> “I felt wronged by my Legal Aid lawyer. I'm not educated and I don't know theCourt process; I relied on her and she wronged me." - Domestic ViolenceSurvivor, Calgary

> “I did not feel supported by my lawyer in court. The lawyer was talking toopposing counsel and this caused me to feel like my lawyer was not on my side.Did he not have enough experience? Is he not putting in the effort because it'slegal aid? I felt abandoned.” - Single mother, Moncton

Community members described a justice system that is simply overwhelming. It is toocomplex, too complicated. They reported stress and discouragement over seeminglyendless obstacles.’ Community members described the many steps involved in pursuinga right or protection, such as: obtaining the information, translating the information,paying the fee, finding an advocate, arranging for an interpreter, and then tackling thelegal issue and its opposing party. It is a legalistic, lengthy and daunting process; it seemsa Herculean effort is required, something very discouraging to marginalized communitymembers.

> “It is overwhelming Youfeel incapacitated." — Single mother, Moncton

> “It is the stress of all the steps prior to getting to the step where you caneven act out your rights, and you get so frustrated with process." - Deafwoman, Toronto

> “I am frustrated that the clerk tells me I need to file documents, but will notadvise which ones. I am advised that I need to get a lawyer. " — Singlemother, Moncton

> “My experience overall is that I had to spend entirely too much time trying tofigure out the steps, the process, and the players. I often felt like I was given ajigsaw puzzle but all of the pieces were the same size and there was no colour

9 Supported by the B.C. report, supra note 3, at p. 2.1.

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or picture and I couldn't figure out how to put them together.” - B.C.resident“

Several other barriers to navigating the system were identified: fears of facing theopposing party; desire for privacy (concerns about the Court/tribunal being a publicforum, about lawyers speaking openly about their cases in an open hallway); poverty andfinancial constraints; transportation; child care; interpretive services; andarranging/funding accommodations.

> “It costs money to open a file. Why should we have to put up our money ifwearen't sure we're going to win?” — Single mother, Montréal

These difficulties and barriers to navigating the system are fiustrating, upsetting anddiscouraging. Community members said that, when facing or even contemplating them,they would "just give up“. When marginalized community members describedexperiences where they did pursue their legal rights or protections, it was often framed asa fight against the odds.

> "Why [are we] fighting every step ofway[?]" - Deafwoman, Toronto

> “Am I pissed off enough to invest energy time to try to do somethingabout this?” - Person with disability, Toronto

> “It's just too hard; I guess all you can do is pray." -Aboriginal woman,Saskatoon

How does this inform Qpractical definition ofagcess to justice?lustice recognizes that information empowers. Iustice systems are informativeabout their processes. The processes themselves are streamlined andstraightforward. Participation is not dependent on one’s financial resources.Supports are in place so everyone can participate. Safety and privacy concerns areaddressed in meaningful ways. The emotional health of the participants isconsidered and supported.

'° Supra note 3.

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III. WHAT HAPPENS WHEN ACCESS TO IUSTICE IS AFFORDED

1. Legal Rights and Iustice

Most participants believed that justice and equality were the goals and underpinnings ofthe law. Interestingly, the law itselfwas rarely criticized, it was often venerated as beingfair and affording, in principle, rights and protections. They felt that its implementationby the justice system and justice professionals was what was unfair and unequal.

> “They can't take away your legal rights. You still have those rights nomatter what, you can't take them away they are my legal rights.” - Deafman, Toronto

> “A person has a right to access and equality... I as a full citizen haveresponsibilities and rights to access the system.” - Deafwoman, Toronto

The community provided some definitions ofwhat justice should and can be like. Someof them might be counter-intuitive to those of us who work in justice systems. Someexamples included:

> “Fairness, equality and being held accountable.” - Person withDisability, Toronto

> "Due consideration ofall the facts and circumstances." - Man with mentaldisability, Toronto

> “Being heard. Being taken seriously." - Single mother, Kentville

> “It makes it possible to fix the damage." - Youth, Montréal

How does this inform apractical definition ofaccess to justice?justice is inviolable. It ensures faimess and equality for all, and moreover,respect for all its participants. Respect from just means being heard andproviding an effective, meaningful outcome.

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2. Information as a Prerequisite to lustice

Community members stated that people first needed to know their rights before theycould enforce them. Some people said they believed they had rights, but just did notknow what their rights were. Lack of information was a repeated complaint; thus theprovision of legal information was a repeated recommendation. Many believed thatpublic legal education is necessary, both generally and in schools.”

> “If you're not aware ofyour rights, they are easily trampled." - Personwith mental disability, Toronto

> “I need education to protect my rights." - Deafman, Toronto

It seemed that most community members know when their problem is legal in nature orhas a legal aspect to it, but reported how difficult it is to find information about the legalproblem and all the procedures required to address it. The community made it clear thatit is not sufficient just to have information about the law; information about theprocessesis needed. Community members said in no uncertain terms they need to know what isgoing on and what is going to happen.

> “What I need to lmow is: where do I go, what do I fill out, how do I get thisresolved?” - Manitoba resident”

Some people said positive things about public legal education materials, that they werehelpful and informative. Some mentioned their availability at libraries, courts, legalclinics, MLA/MPP's offices and online. Some indicated that they did not know where togo to get the information and that it was difficult to find, especially for new Canadians.People with disabilities said that, even if they found the information, it was notnecessarily accessible to them, e.g. in Braille.

> “Very difficult to seek legal info especially for ethno-racial communities,marginalized communities and people with disabilities." - Person withdisability, Toronto

" Public legal education is also recommended by the Ontario report, supra note 2, at p. 7.

'“ Supra note 1.

Is

> “There's a lack of information for people ofdifferent cultures.” - Domesticviolence survivor, Calgary

Some complained that public legal information, like pamphlets and self-help websites,were confusing and difficult to navigate. Some said that information should be plainerand easier to read. '3

> “I was referred to a website, but good luck dissecting that. I-low do people doit? The website wasn't user friendly at all.“ - Single mother, Moncton

> “When I find something that's helpful, language may be too dense, notculturally sensitive, may be too generic, and I need to do some thinkingaround it." - Deafwoman, Toronto

If information is power, a failure to provide information is subordination. Somecommunity members believed they were kept in the dark on purpose, so the justicesystem could retain its power over them.

> “The information that we need should be provided. You are made dependenton the system, because you don't know what to do.” -Aboriginal woman,Saskatoon

> “What would happen if I go to get information and the service provider isoffended that you have insider knowledge? When you have knowledgethey feel threatened." - Person with disability, Toronto

How doe_s_this inform apractical definition ofaccess to justice?Information about law and its processes empowers. It enables communitymembers to lmowwhat their rights are and how to enforce them. Being informedensures equal participation in the justice system. Power is shared equitablybetween justice professionals and the parties accessing justice systems.

" See also: Manitoba report, supra note 1, at p. 4.

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3. justice is about Respect

A recurring theme during the consultations is that marginalized community members didnot feel heard and that their matters were not being taken seriously. They want to betreated as a respected part of justice processes.

> "I’m just a person [the] system needs to be ready for me as a person, nota specialty, an exceptionaI[ity], not about accommodation of specialneeds. You need to make it ready for me: [an] equal playing field.” - Deafwoman, Toronto

‘P “The system is so impersonal. As soon as you file your documents, you losecontrol. You are just a number." - Single mother, Moncton

Again, information is power. Community members reported that they felt morerespected if they were kept in the loop. They also felt more respected if their privacyconcerns were being considered, e.g. if the Court or lawyer handled their matterdiscreetly.

> "When the lawyer and the crown talk-the person they're talking about shouldbe there." - Street-involved male youth, Halifax

> “Lawyers speak to their clients in front ofeveryone. I don't feel like hearingabout what's going to happen at such and such a time because somebody hitsomebody..." - Single mother, Montreal

How does this inform apracticaldefinition ofaccess tojustice?justice systems respect its participants. Respect is demonstrated by seeing allparticipants as equals, treating them kindly, respecting their privacy and ensuringthey are informed.

4. justice is a Holistic Concept with Systemic Solutions

One of the most palpable and, in my view, crucial findings of the consultations is thebroad, holistic view ofjustice held by marginalized community members. When lawyers

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and judges talk about access to justice, we usually talk about law and justice systems andthe provision of legal services and information. Our vision is often limited to our frameof reference.

When marginalized community members talked about justice, they talked about what ishappening outside ofcourthouses and law oliices: poverty, education, racism, homeenvironments and more. They highlighted the need for the resources and supportsnecessary to ensure that we live in just societies.

These supports included: access to education, meaningful employment, adequate housingand healthy home lives. They believed strongly that addressing these issues wouldprevent involvement in justice systems, andlor reduce the likelihood of futureinvolvement.“

> “Before someone goes into the system, help them. Do outreach to families atrisk and give them support. What is happening at home is definitely a justiceissue." -Aboriginal woman, Saskatoon

> “You've got to look at the bigger picture. People get charged/incarcerated andthen released back into the same environment where the behaviour originatedfrom. You've got to deal with the home situation. That's why kids are goingout to steal cars. Maybe there are bad parents at home, not taking care ofthem. Or maybe they are good parents and the kids are rebelling. When I wasin the system, I was leaming, there was care and guidance. But the moment Iwas released, I was back in the same situation. Supports are needed afterincarceration.” -Aboriginal woman, Saskatoon

‘> “We need education, there's a shortage in the trades. There are lots ofcapableAboriginal kids who could be trained. Education is supposed to be protectedby treaties. If the money for the foster care system was put into education thatwould make things better.” —Aboriginal woman, Saskatoon

It was clear from the community members’ comments and stories that their legal issuesare intimately interwoven with the other social and personal issues in their lives.

"' See also: Manitoba report, supra note 1, at p. 4.

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This seems to flow in two directions. In one sense, what is happen within the justicesystem is having a ripple effect into their lives, like the single mother experiencingexcessive delay in the family court who fears losing her house as a result. In anothersense, what is happening in their lives and households creates legal problems andpromotes involvement in the legal system, like the youth who flees a poor homeenvironment and becomes easy prey for gangs on the street.

> “The law and legal terms are very broad [and go] from personal tosystemic, e.g. mental health, hospitals, consumer rights, etc. [The]problem is that there are gaps and l’m a marginalized person. [It's] veryrare to find someone who can appreciate what my issues are.” - Deafwoman, Toronto

Addressing broader issues of poverty, education, employment, housing and healthyfamilies are as important to ensure justice as anything else, arguably the most important.They are preventative, to be sure, of involvement and repeated involvement in the justicesystem, but moreover, they are foundational to just societies.

How does this inform a practical definition ofaccess tojustice?justice is more than what is happening inside the justice system. justice is aboutwhat is happening at home, at schools, at workplaces and on the street. A justsociety is foundational to an effective, fair justice system.

IV. RECOMMENDATIONS

We asked marginalized community members, “what should it be like?" We askedspecifically what they needed to navigate justice systems and what the people in thejustice system could do differently to help them. They gave several recommendations.

)> We need more information about our legal rights and how to navigate justicesystems.

> We need more comprehensive support and advocacy, including communityservice providers who can provide holistic support.

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Remove the barriers that we are facing within the justice system, e.g. providecorrect, qualified interpreters, provide information in multiple languages.

Have a central place with information and a “triage” service to point everyonein the right direction, e.g. both victims and offenders. Develop a checklist orquestionnaire to identify people’s needs. Make sure it is flexible to respond toour realities, such as being available evenings and weekends, via telephone andthe internet. *5

o “There should be a place that everyone should know about. Ifyou have alegal issue, you can go explain your situation and they would tell youwhere to go, YWCA, website, etc. A sort of triage service to get you onthe right track. Right now it's all disjointed and hit or miss. It's difficultto get good information.” - Single mother, Moncton

Take a holistic approach. Involve multiple service providers on the same team.Get all the service providers on the “same page”. Encourage dialogue betweenthem, e.g. case conferences. Ensure everyone understands everyone’s roles.

0 In my community people banded together because [it was] hardto be heard. We meet with police and community relations officer,he has a nurse with him, [it's a] crisis team. [It] seems to helpwhen there is group solidarity and everyone is getting the sameinformation at the same time and you can speak to them one onone and clarif[y] information on rights.” - Person with mentaldisabilities, Toronto

Equip lawyers to provide information about other service providers and sourcesof information.

Provide sensitivity training for lawyers and other service providers to ensurethat we are supported and more effectively served.“ The police in particularneed sensitivity and cultural training.

Manitoba report, supra note 1, at p. 4.

Also observed in Ontario report, supra note 2, at p. 6 and Manitoba report, supra note 1, at p. 4.

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3* Create incentives for people in the justice system to treat us more fairly or do abetter job for us. Use financial penalties and incentives to motivate people towork more effectively and fairly.

0 “There is no real incentive for a lawyer to get you off.” - Street-involvedmale youth, Halifax

0 “I go to court and had to take a day offwork. Maybe the other personshould be fined.” - Single mother, Moncton

0 “If I'm charged, I will be held until trial, because of the FTAs on myrecord. Once I was facing a bullshit charge and held on remand foreight months. I was working at the time ofmy charge, so I lost my job.That took away my self-confidence and my drive. At trial, I beat thecharge. Those are months I’ll never get back. I don't get any money forthe time I lost. They should reimburse wrongfully accused people forlost income during the time they were held on remand.” -Aboriginalman, Saskatoon

Some community members recognized that they were could be involved in building amore just society. Some mentioned getting involved politically and persuadinggovernments to make changes to the system.

> “Native people need to get out and vote. We've got to reach out and startbrainstorming. The government should meet us halfway to make the systemwork.” -Aboriginal woman, Saskatoon

Paper prepared by Amanda DodgeMarch 2013

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